While most of the legal framework concerning the
purchase and sale of firearms is established by the federal standards and
threshold, there are still a number of Tennessee statutes which supplement
the federal scheme concerning the purchase and sale of firearms. The bulk
of these state statutes address the fact that Tennessee’s Legislature
decided in early 1998 to opt out of the National Instant Check System (“NICS”),
which is a portion of the Brady law that went into effect in November
1998.

Rather than participate in the NICS system under which the Federal Bureau
of Investigation would perform background checks on retail firearms
purchases in Tennessee, Tennessee opted out of the Federal system and
established the Tennessee Instant Check System (“TICS”) under which the
Tennessee Bureau of Investigation is designated as the “point of contact.”

Much of the decision by the Tennessee Legislature to opt
out of the Federal NICS system took place very early in 1998 during
informal meetings with the House Judiciary Committee. At that time, the
Federal government was still conducting hearings on the implementation of
the NICS program. In those hearing it was anticipated that the FBI would
be charging approximately $27 for each NICS check. Rather than allow
Tennessee to be included in the NICS system, the Tennessee Legislature
opted out of the Federal program. It set the TICS fee at $10 per
transaction which was the amount charged by Davidson County Police
Department for firearms purchase background checks at the time.
Ultimately, the Federal government decided that the NICS checks would be
done at no charge to the firearms purchasers and, since that time, efforts
have been made in the Tennessee Legislature to either remove the $10 fee
in Tennessee or to opt into the federal program (however, a fiscal impact
of approximately $2,000,000 to $4,000,000 per year in potentially lost
revenue is very hard for a money hungry government to forego).

During the first reporting year (November 1998 to
December 1999), the Tennessee Bureau of Investigation reported that it
processed 303,509 TICS requests covering 330,188 firearms. As of February
2005, the total TICS checks processed since November 1998 is 1,382,285
covering 1,507,812 firearms. These background checks cover just the retail
purchases of firearms from licensed dealers. “Casual” sales, i.e., sales
between individuals, and sales to law enforcement and government agencies
are not included in the TICS statistics.

So, what are the statutes under Tennessee law which address the transfer
of ownership of firearms? Tennessee Code Annotated § 39-17-1316 has been
on the books since the overhaul of Tennessee’s criminal code in 1989. It
is now the primary statute under state law concerning the sale of firearms
in Tennessee. In many respects, it mirrors the federal statutes. It has
undergone several amendments since 1989 with the most notable being in
1998 and again 2001. In 1998, this code section was amended to implement
the TICS program.

One problem that quickly surfaced under the TICS program
was the position taken by the Tennessee Bureau of Investigation that a
proposed purchase would be automatically denied if a computerized criminal
history background check revealed that the individual had been arrested on
any charge which might have been a felony and for which the computerized
records did not contain sufficient information concerning the final
disposition of the criminal charge (a situation that is also referred to
as a “open disposition”). See, Rules of the TBI, 1395-1-3-.05.(8-10). The
circumstance of an open disposition was a common problem since the
arresting agencies tended to be better at reporting arrests than the
courts were at reporting final dispositions so that the FBI databases
could be kept current.

When the TBI denied a proposed purchase under the TICS
program because of an open disposition or any other questionable criminal
history check, the TBI notified the proposed purchaser that they had the
ability to appeal that determination. The TBI then required the individual
to obtain certified copies of records from the arresting agency and/or the
court which established the final disposition of the charges so that a
determination could be made concerning whether it was a disqualifying
felony conviction. This appeals process often required the assistance of
an attorney and was often costly or even cost-prohibitive for individuals.
Furthermore, nothing in the law required local agencies to cooperate in
clearing criminal records of incomplete information and in many instances
relevant records no longer existed.

Significantly, nothing in either state or federal law
required the TBI to issue denials on open dispositions, it simply decided
to do so under those circumstances because an individual “might” have a
felony conviction. Because of the numerous problems with incomplete
criminal records and the manner in which TBI had elected to handle the
background checks, the Tennessee Legislature amended this statute in 2001
to put the burden on the TBI to establish that the individual is a
prohibited person within 15 days. Under the 2001 amendment, if the TBI
could not establish that the individual was prohibited, it had to allow
the transfer to go forward.